SRINATH & SRINATH - [2018] FamCA 779

FAMILY COURT OF AUSTRALIA

SRINATH & SRINATH

[2018] FamCA 779

FAMILY LAW – CHILDREN – Best Interests – Undefended Hearing – Where the father has never participated in these proceedings – Where the mother seeks that she be allowed to relocate with the children to Country E – Where the mother seeks orders for equal shared parental responsibility and for the father to spend some limited time with the children in Australia by agreement and in Country E – Where the father has had limited involvement in the children’s lives since separation – Where the mother’s biological family reside in Country E – Where the children have a strong connection with their family in Country E – Where the children’s views should be given some weight – Where there is no question as to the mother’s parenting capacity – Where it is appropriate to make orders as sought by the mother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN
Family Law Rules 2004 (Cth) r 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Farmer & Rogers [2010] FamCAFC 253
Goode & Goode [2006] FamCA 1346
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4
Taylor & Barker (2007) 37 Fam LR 461

APPLICANT:

Ms Srinath

RESPONDENT:

Mr Srinath

FILE NUMBER:

PAC

2192

2009

DATE DELIVERED:

28 September 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

15 June 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Rajesh Chand & Associates

THE RESPONDENT:

No appearance

Orders

That the parenting orders made on 9 September 2009 be discharged.
That the mother and father have equal shared parental responsibility for the children X born … 2001 and Y born … 2007 (“the children”).
That the children live with the mother.
That the mother be permitted to relocate the children’s residence to Country E.
That the father spend time with the children as agreed by the mother and father in writing such writing to include email or SMS communication or in default of agreement as follows:
(a)once in every calendar year, in the Sydney metropolitan area from 9.00 am to 6.00 pm on up to two consecutive Saturdays and Sundays, with the mother to bring the children to Australia for at least one fortnight per year for this purpose.
(b)changeovers to be as agreed by the mother and father in writing such writing to include email or SMS communication and in default of agreement at the father’s home.
(c)In the event that the father travels to Country E, the children spend time with the father as agreed in writing such writing to include email or SMS communication or otherwise for up to five consecutive days in each calendar year, provided the children continue to attend school and their usual activities during that time.
That the father be permitted to telephone or use other electronic means such…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SRINATH & SRINATH

Details

AGLC: SRINATH & SRINATH [2018] FamCA 779
Case: [2018] FamCA 779
Decision Date: 28 September 2018

CaseChat Overview and Summary

In the matter of SRINATH & SRINATH, Foster J of the Federal Circuit Court of Australia considered an application to discharge existing parenting orders and make new orders concerning the children X and Y. The dispute involved the parents' respective responsibilities and the children's residence, including a proposed relocation of the children's home to Country E.

The court was required to determine the extent of parental responsibility each parent should have, where the children should live, and whether the mother should be permitted to relocate the children to Country E. Further issues included the arrangements for the father's time with the children, both within Australia and potentially in Country E, and the means of communication between the father and the children. The court also needed to address the ongoing communication and welfare obligations of each parent.

Foster J ordered the discharge of the previous parenting orders and established equal shared parental responsibility for both parents. The children were ordered to live with the mother, who was permitted to relocate them to Country E. Specific arrangements were made for the father's time with the children, including annual visits to Sydney and provisions for time with the father in Country E, subject to the children's schooling and activities. The court also mandated regular electronic communication between the father and the children and required both parents to inform each other of significant welfare matters and to refrain from denigrating the other parent.

Orders

Orders of the court

That the parenting orders made on 9 September 2009 be discharged.

That the mother and father have equal shared parental responsibility for the children X born … 2001 and Y born … 2007 (“the children”).

That the children live with the mother.

That the mother be permitted to relocate the children’s residence to Country E.

That the father spend time with the children as agreed by the mother and father in writing such writing to include email or SMS communication or in default of agreement as follows:

(a) once in every calendar year, in the Sydney metropolitan area from 9.00 am to 6.00 pm on up to two consecutive Saturdays and Sundays, with the mother to bring the children to Australia for at least one fortnight per year for this purpose.

(b) changeovers to be as agreed by the mother and father in writing such writing to include email or SMS communication and in default of agreement at the father’s home.

(c) In the event that the father travels to Country E, the children spend time with the father as agreed in writing such writing to include email or SMS communication or otherwise for up to five consecutive days in each calendar year, provided the children continue to attend school and their usual activities during that time.

That the father be permitted to telephone or use other electronic means such as Facetime to communicate with the children at any reasonable time, and that the mother do all things to facilitate that communication.

That the parent who has the children in his/her care inform the other parent promptly of any serious medical problems and treatment, and any other matter relevant to the children’s welfare.

That neither parent denigrate the other parent or the members of that other parent’s family, in the presence or hearing of the children.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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